U.S. EX REL LAKE v. LEIBACH

The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Before the court is Lamonte Lake's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, Lamonte
Lake ("Lake" or "Petitioner"), challenges his state court
conviction for first degree murder. For the reasons stated below,
the petition is denied.

I. BACKGROUND

After a jury trial in the Circuit Court of Cook County, Lake
was convicted of first degree murder in the shooting death of
Alvin Gilmore. On August 29, 1996, Lake was sentenced to a term
of forty-five years in the Illinois Department of Corrections. On
June 16, 1998, the Illinois Appellate Court, First District
affirmed his conviction and sentence. See People v. Lake,
298 Ill. App.3d 50, 697 N.E.2d 1147 (Ill.App. Ct. 1998). On
December 2, 1998, the Illinois Supreme Court denied Lake's
petition for leave to appeal. See People v. Lake,
181 Ill.2d 581, 706 N.E.2d 500 (Ill. 1998). Lake did not seek a writ of
certiorari in the United States Supreme Court.

Lake then filed a petition for post-conviction relief in the
Illinois courts. On April 10, 2000, the Circuit Court of Cook
County dismissed the petition for post-conviction relief as
untimely and for failing to raise any meritorious constitutional claims. On
August 26, 2002, the Illinois Appellate Court, First District
affirmed the dismissal of Lake's petition for post-conviction
relief. On June 16, 2003, the Illinois Supreme Court denied
Lake's petition for leave to appeal the dismissal of his petition
for post-conviction relief.

On July 1, 2003, after direct review and post-conviction review
within the State of Illinois, Lake filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, in federal court. In
his petition, Lake raised the following issues: (1) whether trial
counsel was ineffective for failing to properly investigate,
establish a competent defense and submit proper jury
instructions; (2) whether jury instructions were proper; (3)
whether the trial judge committed error in failing to excuse a
member of the jury; (4) whether prosecutorial misconduct resulted
in the denial of a fair trial; and (5) various other arguments
that fail to raise a constitutional issue. On September 17, 2003,
Respondent, Blair Leibach, Warden of the Danville Correctional
Center, filed an answer to the § 2254 petition, arguing that the
petition is untimely.

The petition is fully briefed and the issue before the court is
whether Petitioner's post-conviction proceedings in the state
court were properly filed so as to toll the one-year statute of
limitations for § 2254 petitions.

II. ANALYSIS

A. Standard of Decision

Lake's petition is governed by 28 U.S.C. § 2254(d), as amended
by the Antiterrorism and Effective Death Penalty Act ("AEDPA"),
which sets a high hurdle for habeas relief. Section 2244(d)(1)
imposes a one-year statute of limitations on state prisoners
seeking habeas corpus relief. See 28 U.S.C. § 2244(d)(1). The
one-year statute of limitations imposed by section 2244(d)(1)(A) begins to run (i) when all direct criminal appeals in the state
system are concluded, followed by either completion or denial of
certiorari proceedings before the United States Supreme Court; or
(ii) when, if certiorari was not sought, all direct criminal
appeals in the state system are concluded, followed by the
expiration of the time allotted for filing a petition for writ.
See 28 U.S.C. § 2244(d)(1); Anderson v. Litscher,
281 F.3d 672, 675 (7th Cir. 2002).

The one-year statute of limitations imposed by section
2244(d)(1) may be tolled. Section 2244(d)(2) provides that the
limitations period is tolled during the time that "a properly
filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending." 28 U.S.C. § 2244(d)(2) (emphasis added). As the Seventh
Circuit has stated, "Congress explicitly required a `properly
filed' pleading to toll the statute of limitations." Gutierrez
v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000). "An application
is `properly filed' if its delivery and acceptance `are in
compliance with the applicable laws and rules governing
filings.'" Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002)
(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). In order to
be "properly filed," an application for collateral review in
state court must satisfy the state's timeliness requirements.
See Carey v. Saffold, 536 U.S. 214, 226 (2002); Brooks v.
Walls, 301 F.3d 839, 841 (7th Cir. 2002). "If the petitioner
failed to comply with an adequate and independent rule of state
procedure, and he cannot show cause and prejudice in connection
with his failure to do so, then federal habeas corpus relief is
not available." Gray, 305 F.3d at 779 (citing Stewart v.
Smith, 536 U.S. 856, 860 (2002)).

B. Lake's § 2254 Petition is Untimely

For purposes of calculating the limitation period, the court
must determine when Lake's direct criminal appeals were, or would
have been, concluded. Lake's petition for leave to appeal was denied by the Illinois Supreme Court on December 2, 1998. Lake
had until March 2, 1999 in which to seek a writ of certiorari in
the United States Supreme Court, which he did not do. Therefore,
the limitations period began to run on March 3, 1999. See
28 U.S.C. § 2244(d)(1) (providing that the limitations period runs
from "the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review"); Anderson, 281 F.3d at 675.

Lake then filed a petition for post-conviction relief in the
Illinois courts, which on April 10, 2000, the Circuit Court of
Cook County dismissed as untimely and as unmeritorious. On August
26, 2002, the Illinois Appellate Court affirmed the dismissal of
Lake's petition for post-conviction relief. On June 16, 2003, the
Illinois Supreme Court denied Lake's petition for leave to appeal
the dismissal of his petition for post-conviction relief.

The Circuit Court of Cook County clearly ruled that Lake's
petition for post-conviction relief in the Illinois courts was
untimely. See 725 Ill. Comp. Stat. 5/122-1(c) (2000)
(discussing time period within which to file petition for
post-conviction relief). The Illinois Appellate Court clearly
affirmed that decision. However, the Circuit Court of Cook County
also stated that Lake's petition for post-conviction relief in
the Illinois courts failed to raise any meritorious
constitutional claims, and its ultimate decision therefore rested
on dual grounds. The United States Supreme Court addressed the
question of dual grounds in Saffold, where it held that a clear
ruling from the state court that a filing was untimely "would be
the end of the matter, regardless of whether it also addressed
the merits of the claim, or whether its timeliness ruling was
`entangled' with the merits." Saffold, 536 U.S. at 226. The
Seventh Circuit, interpreting Saffold, has stated that "both
aspects of a dual-ground decision (substance and procedure) must
be respected, so that an untimely petition is not `properly
filed' even if the court also addresses the merits. . . ."
Gray, 305 F.3d at 779; Brooks, 301 F.3d at 841.

Lake's petition for post-conviction relief in the Illinois
courts was clearly dismissed as untimely according to Illinois
procedural rules. Further, Lake does not attempt to establish
cause and prejudice for failing to comply with Illinois
procedural rules so as to allow the court to review this claim.
See Gray, 305 F.3d at 779. Lake's petition for
post-conviction relief in the Illinois courts was not "properly
filed" in order to toll the one-year statute of limitations
provided by the AEDPA. "It is enough to hold, as Saffold
instructed, that an unambiguous dual-ground decision
(untimeliness plus the merits) shows that the state application
was not `properly filed' for purposes of § 2244(d)(2) even if the
issues were entangled." Brooks, 301 F.3d at 843. As such, this
court is bound to respect the Circuit Court of Cook County and
Illinois Appellate Court decisions ruling that it was filed too
late, and this fact prohibits the court from considering the
merits of Lake's federal habeas corpus petition.

III. CONCLUSION

For the foregoing reasons, Lamonte Lake's petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.

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